• Annaka Groschinski

The United States and the International Criminal Court

The United States government has been very critical towards the International Criminal Court (ICC) ever since George W. Bush wanted to “unsign” the Rome Statute, the governing document of the ICC. This viewpoint continues under the Trump administration. Just last year the U.S. revoked the visa of the ICC prosecutor, Fatou Besounda, who was investigating Afghan war crimes including crimes that might have been committed by American forces. [1] Trump’s former National Security Advisor, John Bolton, has also been working against the ICC. [2] Further, acts such as the American Service-Members’ Protection Act (ASPA) or the Nethercutt Amendment[3] show that the government has not only denied help to the Court but has also been actively working against it. So, why does the United States’ stance towards the ICC matter?

Perpetrators of mass atrocities are some of the worst criminals in the world. Most of them violate international criminal laws and with it the four core crimes described in the Rome Statute, namely crimes against humanity, war crimes, genocide, and the crime of aggression. Those mass atrocities often cross borders by either involving perpetrators or victims from several states and are, therefore, subject to international prosecution.[4] The International Criminal Court, via the Rome Statute, prosecutes those perpetrators and strives to end impunity for mass atrocities. Since the ICC is a court of last resort, it acts on the principle of complementarity, meaning that unless a state is unwilling or unable to prosecute a perpetrator, the ICC cannot intervene. [5] Therefore, the ICC heavily relies on its member states and their cooperation with the Court. Influential states, such as Germany or France have signed and ratified the Rome Statute to help the Court reach its goal. However, some states actively go against the ICC and try to take away its legitimacy. This could mean the end of the Court and, therefore, would enable perpetrators of mass atrocities to commit those crimes without prosecution.

The United States, as one of the most influential countries in the world, could be a powerful ally to the Court and could decrease the occurrence of mass atrocities. However, the state’s active opposition to the ICC can have detrimental consequences, not only for the Court in and of itself, but also for other states. Not only could it mean that many criminals would be able to murder innocent people without consequences because they operate outside of the Court’s jurisdiction, but it also means that the Court could lose its legitimacy.

While the state’s opposition should not be supported, it is still important to acknowledge that the United States government has valid reasons for having doubts about how the ICC operates. Some of the biggest challenges are based on constitutional grounds. The Rome Statute is in some parts incompatible with the United States Constitution. [6] Basic rights such as due process, the right to counsel, and the right to a jury are not assured in the Rome Statute. This introduces major obstructions should the U.S. allow the Court to prosecute U.S. citizens in The Hague. Nevertheless, those concerns, while valid, can and should be overcome to assure that perpetrators of mass atrocities are sufficiently punished.

There are several ways to work towards a better relationship between the United States and the ICC and eventually towards a collaboration between the state and the Court. Those changes should be implemented through new policy. A great step would be for the government to take a public stance and explain that the U.S. does not go against the working of the Court but rather wants to cooperate. This means to amend the ASPA [7] and allow for United States co-operation with the ICC. By allowing the Court to investigate and prosecute U.S. citizens, the U.S. would signal a willingness to work with the ICC, which shows the international community that no one can get away with mass atrocities. This would illustrate that the U.S. is not a “safe haven” for those perpetrators.[8] It would also help the ICC in ending impunity for mass atrocities because it signals that one of the most powerful states in the world is working against those perpetrators. For instance, if powerful U.S. actors, such as Mr. Bolton, the former United States National Security Advisor and one of the Court’s opponents, takes a more positive stance towards the ICC it could not only persuade President Trump to change his stance, but could also send a different picture to the international community and help the ICC.

However, amending the ASPA is a huge step in changing the relationship between the U.S. and the ICC. Therefore, an alternative policy would be to stop undermining the ICC and actively going against it. Changing the U.S. negative viewpoint of the ICC to a more neutral viewpoint, can have a positive impact on other states that are not as sure about their stance on the ICC. The U.S. would function as a positive example for other states, showing that the ICC is an important institution in the fight against mass atrocities. Furthermore, regarding the inconsistency of the Rome Statute with the U.S. Constitution, the U.S. should look to various European countries, such as Germany, France, and Spain. These countries have found a successful way to implement the Rome Statute into their domestic laws by introducing a new criminal code. Those criminal codes align several provisions of the Rome Statute with the countries’ respective domestic laws. The United States legislature could, therefore, take Germany’s Code of Crimes against International Law or France’s Article 689 of the French Code of Criminal Procedure as examples and introduce an act, law, or policy that deals with international crimes as described in the Rome Statute on a national level. [9]

Overall, there is much to be done until the United States and the ICC will have a friendly relationship that is built on toleration of the U.S. for the Court. However, something needs to happen, and the country’s opposition is not only detrimental for the ICC but can also hurt the international community as a whole.

[1] https://www.nytimes.com/2019/04/05/world/europe/us-icc-prosecutor-afghanistan.html

[2] https://time.com/5393624/john-bolton-international-criminal-court/

[3] https://www.hrw.org/news/2004/12/08/us-congress-tries-undermine-war-crimes-court

[4] “The Court Becomes Operational ”An Introduction to the International Criminal Court, by William Schabas, Cambridge University Press, 2017, pp. 23–45.

[5] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute).

[6] “Understanding US Opposition to the ICC.” Defending the Society of States: Why America Opposes the International Criminal Court and Its Vision of World Society, by Jason G. Ralph, Oxford University Press, 2011, pp. 119–149.

[7] https://2001-2009.state.gov/t/pm/rls/othr/misc/23425.htm

[8] “Understanding US Opposition to the ICC.” Defending the Society of States: Why America Opposes the International Criminal Court and Its Vision of World Society, by Jason G. Ralph, Oxford University Press, 2011, pp. 119–149.

[9] Gallagher, Katherine. "Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture." Journal of International Criminal Justice 7, no. 5 (2009): 1087-116